CPSC Certification

On November 10, 2008, the Consumer Product Safety Commission (CPSC) issued a new, immediately effective regulation (16 C.F.R. § 1110) under the authority of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The CPSC issued these regulations to streamline and clarify the new certification requirement that will begin to take effect today, November 12, 2008. The two primary provisions of this regulation are:

• Only the importer or domestic manufacturer will be required to issue certifications under the CPSIA
  
  Certifications under the CPSIA need only be issued by (1) the importer in the case of foreign products, or (2) the domestic manufacturer in the case of domestic products. Using its statutory authority, the CPSC chose to place the certification requirements on these entities (rather than on the manufacturer, the importer and the private labeler) to streamline the certification process, at least during the transition to the new statutory regime. The CPSC gave some indication that the lessened requirements could be temporary, but the regulation has no indication of a termination date.
• Electronic Certification Standards
  
  The CPSC made its previously discussed electronic certification standards official and provided the basic requirements for electronic certification. The regulation states that a certificate is "accompanying" a product or shipment, as required by the CPSIA if, "the [electronic] certificate is identified by a unique identifier and can be accessed via a World Wide Web URL or other electronic means." The certificate is "furnished" to a distributor or retailer, as required by the CPSIA, if it is "provided a reasonable means to access the certificate." The certificate still must contain the same information as a paper certificate, though the information required in all certificates was altered slightly to address the new standards. Of significant note, the regulation also provides that "[a]ny entity or entities may maintain an electronic certificate and may enter requisite data," but legal responsibility for the contents of the certificate will still fall on the party bearing the legal certification duty (i.e., the importer or domestic manufacturer).

The CPSC stated that it will be issuing more guidance in the near future regarding the certification requirements. While the Commission "expects every company to make best efforts to comply promptly with the new general certificate requirements," the CPSC indicated that there would be a "period of adjustment" during which it would "concentrate initially more on the substantive requirements underlying the certificate than on the certificate or the form of the certificate itself." The CPSC has not yet defined the length of this period of adjustment.

Additional regulations will be issued by the CPSC in the months ahead. Our professionals are monitoring these issues very closely, and we will send updated alerts as issues develop.